497 F.3d 606 (6th Cir. 2007), 05-4576, United States v. Ellis

Docket Nº:05-4576.
Citation:497 F.3d 606
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Dewayne D. ELLIS, Defendant-Appellee.
Case Date:August 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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497 F.3d 606 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellant,


Dewayne D. ELLIS, Defendant-Appellee.

No. 05-4576.

United States Court of Appeals, Sixth Circuit.

August 7, 2007

Argued: March 6, 2007.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-00272-Solomon Oliver, Jr., District Judge.

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[Copyrighted Material Omitted]

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Lori A. Hendrickson, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant.

Philip J. Korey, Cleveland, Ohio, for Appellee.


Lori A. Hendrickson, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant.

Philip J. Korey, Cleveland, Ohio, for Appellee.

Before: ROGERS and GRIFFIN, Circuit Judges, RUSSELL, District Judge.[*]


GRIFFIN, Circuit Judge.

Plaintiff, the United States of America, appeals an order of the district court granting defendant Dewayne Ellis's motion to suppress. The government argues that the district court erred by suppressing incriminating evidence seized during a traffic stop and defendant's post-arrest statements. For the reasons set forth below, we agree and reverse and remand.


In its order, the district court made the following findings of fact:

On Friday, April 16, 2004, Trooper [Andrew] Topp, an Ohio State Highway Patrol Trooper, was working the 11:00 p.m. to 7:00 a.m. shift. (5/27/05 Hrg. Tr. 3-4.) Some time after 3:00 a.m., Trooper Topp observed a white Ford Ranger truck (the "truck") traveling southbound on Interstate 71 in Ashland County, Ohio. (Id. at 8.) The truck was weaving in its lane and had crossed over the white dividing line between the shoulder and the right lane several times. (Id. at 4-5.) Trooper Topp followed the vehicle in his police cruiser, and "ran" the truck's registration plate. (Id. at 5.) The registration matched the truck, showing that it was registered to an Arthur Daugherty. At this point, Trooper Topp activated the lights on his police cruiser and pulled the truck over

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to the side of the road.1 The time, as recorded by the automatically activated camera on top of the cruiser, was 3:23 a.m.2 (Id. at 8; 34-36.)

Two people were in the truck: the driver was a white male in his early 70s, and the passenger was a black male closer to 30. (Id. at 12, 42.) Trooper Topp approached the vehicle from the driver's side and asked the driver if he was tired or sleepy. (Id. at 8.) The driver responded that he was a "little bit" tired. (Id.) Trooper Topp also asked the driver for his license and registration, and asked where he was coming from. (Id. at 8.) The driver provided his license and registration, and told Trooper Topp that he was coming from Cleveland. (Id.) The driver's license identified the driver as Arthur Daugherty, and this name matched the truck registration Trooper Topp had received before pulling the truck over. (Id. at 9.) Trooper Topp did not smell alcohol while standing at Daugherty's side of the car. (Id. at 47.) Moreover, Daugherty did not appear to be under the influence of alcohol. (Id. at 39.)

At 3:25 a.m., Trooper Topp walked over to the passenger side of the truck and asked the passenger where he lived. (Police Video, Def. Ex. A at 3:25:00.) Trooper Topp also asked if the passenger had any identification. (Hrg. Tr. 10.) The passenger responded that he did not have identification on him. (Id.) Trooper Topp then asked for the passenger's social security number, and the passenger stated he did not know it. (Id.) Trooper Topp asked for the passenger's name and date of birth, and the passenger identified himself as Wayne D. McCarthy, born May 9, 1973. (Id.) Trooper Topp asked the passenger "if it was odd or if he thought it was odd that he did not know his social security number being 30 years old"; Trooper Topp did not recall the response. (Id.) The questioning at the passenger side door lasted for one and one half minutes. (Police Video, Def. Ex. A at 3:25:00-3:26:30.) The passenger was respectful, and at no point combative, in his responses to the questions. (Hrg. Tr. 42.) Trooper Topp did not indicate that the passenger seemed nervous in any way. Trooper Topp admitted there is no law in Ohio requiring a passenger in a vehicle to have a driver's license or identification. (Id. at 41.)

At 3:26:35 a.m., Trooper Topp returned to the driver's side of the truck and commanded Daugherty to step out of the truck and sit in the police cruiser. (Police Video, Def. Ex. A. at 3:26:35; Hrg. Tr. 11, 44-45.) As Daugherty exited the truck, Trooper Topp asked him if he always drove this late. Trooper Topp indicated that he brought Daugherty back to his cruiser because it was often hard to smell alcohol from outside a vehicle on the side of the road. (Hrg. Tr. 47.) He also stated that it was his practice to bring people he suspects may be under the influence of alcohol or drugs back to his cruiser to "talk to them, do a little more investigation, if they have had anything to drink or any type of illegal drug." (Id. at 47.) Daugherty complied and sat in the front passenger seat of the cruiser. Trooper Topp found that at times, Daugherty was difficult to understand, and that Daugherty appeared to be hard of hearing. (Id. at 32.) However, Trooper Topp did not think Daugherty was under the influence of alcohol. (Id. at 39.)

Inside the cruiser, at approximately 3:27 a.m., Trooper Topp began questioning Daugherty. The questioning continued for approximately six minutes. (Police Video, Def. Ex. A, 3:27:37 to 3:33:54.) Trooper Topp asked Daugherty a series

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of questions: What he was doing in Cleveland? Why did he go to Cleveland? What part of Cleveland had he been in? How did he know his passenger? Did his passenger have anything with him? (Id.; Hrg. Tr. 11-12, 14.) Daugherty informed Trooper Topp that his passenger had been at a friend's house in Cleveland, that the passenger had paid him $40 to take him, and that Daugherty did not know exactly which part of Cleveland he had been in or what the address was. (Id. at 12.) Daugherty indicated he knew the passenger because he used to take the passenger's sister to the grocery store. (Id.) Daugherty told Trooper Topp that he had forgotten his passenger's name, that it just didn't stick with him. (Id. at 48.) Trooper Topp noted that he found that unusual. (Id. at 13.) There is no evidence in the record that Trooper Topp asked Daugherty whether he had consumed any alcohol or drugs that evening. At this point, the time was approximately 3:29 a.m. (Id. at 50.)

Trooper Topp then asked if there was anything illegal in the truck, or any drugs in the truck, to which Daugherty responded "not that he knew of." (Id. at 13-14.) Trooper Topp continued to ask questions about the passenger, whether he had seen the passenger with illegal drugs, or whether the passenger had anything with him when they went to Cleveland, to which Daugherty responded in the negative. (Id. at 14.) Trooper Topp indicated that while asking such questions was "common practice" for him, it was not a standard procedure, and he had not been instructed to do so. (Id. at 49.)

At 3:29:40, the audio portion of the videotape malfunctioned and stopped recording. (Id. at 52.) When the audio resumed at 3:32:54, Trooper Topp was questioning Daugherty about what he and his passenger were doing in Cleveland, and again asking whether Daugherty knew his passenger's name. (Police Video, Def. Ex. A, 3:32:54.)

During the three minutes without any audio, Trooper Topp admits he was not in the process of writing or issuing a citation to Daugherty. (Hrg. Tr. 51.) Trooper Topp indicated that during this time, he radioed for a drug-detecting canine to be sent to his location. (Id. at 57.) He noted that "through talking to the driver, I thought it was extremely odd why they were going to Cleveland, he was being paid, did not know his passenger because of the things that I found out at that time, I thought some - some sort of criminal activity was going on." (Id. at 15.)

Trooper Topp left Daugherty in the police cruiser at about 3:34 a.m. and returned to the truck to question the passenger. In response to questioning, the passenger provided Trooper Topp with a home address in Michigan, and informed Trooper Topp that he had a valid driver's license in Michigan, but did not have it with him. (Id. at 15-16.) In response to questions about Daugherty, the passenger indicated he had paid Daugherty $50 to take him to Cleveland. (Id. at 84.)

At 3:36:39, Trooper Topp returned to the police cruiser and asked the dispatcher to run a check in Michigan and Ohio for the passenger's stated name and birth date. (Id. at 17.) No positive identification came back from either state. (Id.)

There was no audio on the tape between 3:37 a.m. and when the tape stopped at 3:42 a.m. (Id. at 63.)

At some point after the tape ended, at 3:42 a.m., a backup unit arrived, and indicated that the canine unit was unavailable.

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(Id.) At 3:45 a.m.3, Trooper Topp asked Daugherty for consent to search the truck. (Id. at 18, 64-66.) Daugherty consented, but Trooper Topp did not get written consent, because he asserts that his cruiser was out of consent forms. (Id. at 18, 66.) During the search, Trooper Topp found an oily rag containing cocaine under the passenger seat. (Id. at 19-20.) At 3:52 a.m., Trooper Topp placed the passenger under arrest, and completed his search, finding no additional contraband. (Id. at 22, 70.) Trooper Topp instructed Daugherty to follow him back to the Ashland patrol post, where Daugherty was interviewed and subsequently released without charges. (Id. at 23-24.)

At the station, the passenger, who Trooper Topp subsequently identified as Defendant Ellis, placed a telephone call using a cordless...

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